Radhey Shyam Misra vs Miss.H.A.Daruwalla and Others

Tarun Agarwala, J.—The applicant is appearing in person and has filed the present contempt application against an interim order of the Writ Court, dated 11.12.2007, whereby the Court stayed the effect and operation of the impugned award as well as the order of dismissal and further directed the opposite parties to take back the applicant in service and to pay him the salary. Since the order was not complied with, the present contempt application was filed. Before proceeding further, it is necessary to give a brief back ground of the facts which ultimately led to the filing of the present contempt application.

It transpires that the applicant was dismissed from the services of the bank. He raised an industrial dispute before the Industrial Tribubnal, who gave an award against the applicant holding that the order of dismissal passed by the employers was correct. The applicant, being aggrieved by the award, filed the writ petition before this Court.

It transpires that the counter and rejoinder affidavits were exchanged and the matter could have been heard and decided finally but when the matter was taken up on 11.12.2007, the learned counsel for the opposite party Sri N.K. Seth, made a statement that he was unable to argue the matter as he had been designated as a Senior Advocate. The Court instead of adjourning the matter, passed an interim order dated 11.12.2007 directing the opposite parties to reinstate the applicant and to pay him the salary.

From the counter affidavit filed by the opposite parties, it transpires that a stay vacating application was moved immediately within a week on 18.12.2007 and that the opposite parties pursued the matter for getting the interim order vacated. In paragraph 21 of the counter affidavit, the opposite parties has indicated various dates which were fixed by the Writ Court but the matter could not be taken up either on account of paucity of time or at the insistence of the applicant for getting the matter adjourned. Paragraph 21 of the counter affidavit has not been denied by the applicant in paragraph No.7 of the rejoinder affidavit. Further, the learned counsel for the opposite party invited my attention to paragraph No.15 of the counter affidavit wherein the opposite party has placed certain orders of the Writ Court prior to the passing of the interim order which showed that the matter was being adjourned at the instance of the applicant.

This Court noticed another glaring fact, namely, that a stay vacation application was filed within a week from the date of the passing of the interim order, but, this fact has not been stated in the contempt application which was filed in January, 2008.

This Court finds that the pleadings have been exchanged and the writ petition is ripe for hearing. The matter could be decided finally. The applicant has been dismissed from the service. His claim before the Industrial Court has been rejected. The matter, as to whether the order of termination is valid or not requires adjudication on merit. In the case of State of Jammu & Kashmir v. Mohd. Yaqoob Khan and others, (1992) 4 SCC 167, the Supreme Court has held that the opposite parties should be given some latitude to get the interim order vacated and that the contempt proceedings should not continue on the basis of an interim order.

In Shiv Lal, S.D.M., Mahoba v. Ram Babu Dwivedi, 2006 (2) AWC 1272, a Division Bench of this Court held that there is no willful contempt against an interim order especially when a stay vacation application is pending consideration before the Writ Court.

In view of the aforesaid, it is clear that an opportunity is required to be given to the opposite parties to get the interim order vacated.

The applicant placed reliance upon the provisions of Article 226(3) of the Constitution of India and submitted that the interim order was passed after hearing the parties, and that, sufficient opportunity was given to the opposite parties to place their submissions before the Writ Court which the opposite party had declined. Consequently, in view of the aforesaid provision, further opportunity to get the interim order vacated did not arise and could not be made a ground for delaying the hearing of the contempt proceedings.

The applicant further made a submission that there was no provision wherein a Senior Advocate could not appear or could not argue a matter in the absence of a vakalatnama being fild of an assisting counsel. The applicant submitted that the vakalatnama of Sri N.K. Seth was already on the record, and therefore, he was competent to argue the matter. In my opinion, the applicant is not aware of the provisions of the Advocate Act and the convention which is followed in the High Court. An Advocate, who is designated as a Senior Advocate by the Full Court of the High Court, cannot file his vakalatnama. He cannot sign any application or a petition nor can a Senior Advocate appear or address the Court without an assisting counsel. In the present case, Sri N.K. Seth was appointed as a Senior Advocate and when the matter was taken up for consideration before the Writ Court, a genuine request was made for an adjournment to enable him to file a vakalatnama of an assisting counsel, so that, he could address the Court along with the assisting counsel. Without expressing anything further, on this aspect, as to why the Writ Court did not grant leave to the learned counsel and why the Court passed an interim order, it is sufficient for this Court to hold that, the contempt proceedings should not continue any further. In my view, there is no willful disobedience on the part of the opposite parties in disobeying the interim order of the Writ Court. The opposite parties have filed a stay vacating application before the Writ Court which is pending consideration. The opposite parties should be given an opportunity to get the stay order vacated. Further, in my opinion, the veracity of the termination order is yet to be adjudicated on merit.

In view of the aforesaid, this Court is of the opinion, that since no willful disobedience is made out against the opposite parties, the contempt proceedings are dropped, the notices are discharged and the contempt application is rejected.

In view of the fact that the pleadings have been exchanged and the matter is ripe for hearing, liberty is given to either of the parties to move an application under Chapter VIII, Rule 33 of the Rules of the Court before the Chief Justice to get the matter expedited.

(Petition rejected)